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The  Argument  of  the 
Bishop  of  New  Jersey 

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Dk3A3'rpjjE    ARGUiMENT 


THE  BISHOP  OF  NEW  JERSEY: 


IN  REPLY    TO 


THE    PAPER, 


BEAD    BEFORE 


THE   COURT   OF   BISHOPS, 

IN  SESSIOlSr,  AT  BUELINGTON, 
ON    MONDAY,    11    OCTOBER,    1852j 
BV 

THE  BISHOPS  OF  VIRGINIA,   OHIO,  AND  MAINE ; 

IN 

ANSWER  TO  THE  REPRESENTATION  FROM  THE  DIOCESE  OF  NEW  JERSEY, 

READ,  BEFORE  THE  COURT, 
BY  THE  EEV.  SAMUEL  L.  SOUl'HAED. 


NEWARK,  N.  J.: 
FEINTED  AT  THE  DAILY  AD VERTISEE  OFFICE. 

1852. 


v./ 


THE    COMMITTEE 

OF 

THE  DIOCESE  OF  NEW  JERSEY; 

TO  APPEAR  BEFORE 

THE  COURT  OF  BISHOPS: 

The  Rev.  SAMUEL  L.  SOUTHARD, 

The  Rev.  HARRY  FINCH, 
*The  Rev.  JAMES  A.  WILLIAMS, 

The  Rev.  CHARLES  W.  RANKIN, 

The  Hon.  JACOB  W.  MILLER, 
*The  Hon.  DANIEL  B.  RYALL. 

The  Hon.  E.  B.  D.  OGDEN. 

*  Were  not  present. 


ARGUMENT. 


The  Bishop  of  Ohio,  on  behalf  of  the  Presenting  Bishops,  having  concluded  the  read- 
ing of  their  answer,  which  occupied  an  hour  and  a  half,  at  half-past  12,  on  Monday, 
the  Committee  of  the  Diocese  of  New  Jersey,  by  letter,  asked  leave  to  reply.  This 
being  refused  by  the  Court,  the  Bishop,  as  its  next  friend  and  only  representative, 
and  at  the  written  request  of  the  Committee,  claimed  the  right  "  to  defend  the 
rights  of  the  Committee  and  of  the  Diocese,  and  to  answer"  the  Paper  which  had 
been  just  read.  The  claim  being  granted,  the  Court  took  a  recess,  until  3  o'clock. 
The  Bishop  of  New  Jersey  then  replied,  as  follows : 

Bishops,—  The  Paper  of  the  Presenting  Bishops,  in  answer  to  the 
representation  from  the  Convention  of  the  Diocese  of  New  Jersey, 
read  by  the  Chairman  of  its  Committee,  is,  mainly,  in  two  parts: 

An  attempt  to  depreciate  the  moral  weight  of  the  Convention  ; 

A  legal  argument,  to  exclude  its  action. 

I.  It  was  my  purpose  and  desire  to  keep  myself,  throughout  this 
case,  distinct  from  the  Convention  of  my  Diocese.  As  I  have  said 
before,  I  am  in  no  way  responsible  for  their  present  action.  In  my 
original  contemplation  of  the  case,  the  proceeding  to  trial  followed 
the  canonical  completion  of  the  Presentment.  The  interposition  of 
the  Diocese  was  not  at  my  instance  ;  and  never  with  more  than  my 
assent.  But  the  Convention  had  a  right  to  act.  They  have  acted. 
Their  action  has  been  represented  here.  And,  now,  that  leave  has 
been  refused  to  the  Committee  of  the  Convention,  to  reply  to  the  Pa- 
per of  the  Presenting  Bishops — of  which  I  do  not  make  the  least 
complaint — I  am  bound,  by  the  most  sacred  duty,  as  its  next  friend, 
to  stand  by  the  Convention ;  and  vindicate  it  from  the  depreciating  and 
abusive  language,  which  the  three  Bishops  have  seen  fit  to  employ  to- 
wards it,  and  its  Committee.  I  should  be  guilty,  if  I  did  not,  of  a 
blacker  crime  than  I  am  yet  accused  of :  the  treachery  of  silence, 
when  the  absent  is  condemned  unjustly.*  The  Bishops,  who  hear 
me,  are  all  Diocesan  Bishops.     Each  one  of  them  has  a  Diocesan 

*  "  Qui  rodit  absentem,  qui  non  defendit,  amicum, 

Hie  niger  est :  bunc  tu,  Romane,  caveto." — Jlorat'ms. 


Convention^  of  which  he  is  the  honored  head ;  and  with  which  he  is 
connected  bj  the  most  sacred  and  endearing  relations.  And  I  put  it 
to  every  one  of  them,  to  suppose  himself  in  my  case ;  and  say,  if  he 
would  hold  his  peace,  for  worlds,  when  language,  such  as  is  used  in 
that  Paper,  was  applied  to  his  Convention.  A  Convention,  let  it  be  ob- 
served— I  had  supposed  it  too  familiar  to  need  suggestion,  here — is  not 
a  mere  aggregate  of  individual  men  ;  however  high  their  intelligence, 
however  great  their  influence,  however  unquestioned  their  integrity. 
It  is  no  "mixed  multitude  ;"  no  mere  unorganized  and  irresponsible 
assemblage.  It  is  the  sacred  council  of  the  Diocese.  It  sits,  in  its 
due  orders.  Its  deliberations  are  under  the  most  solemn  sanctions. 
Its  actions  are  controlled  by  the  most  awful  responsibilities.  And  this 
it  is,  a  Diocese  of  the  Church,  well  nigh  the  very  earliest  Diocese  of 
the  Church — the  Diocese  of  New  Jersey — which  is  here  disparaged 
and  assailed.  I  might  justly  complain  of  it,  as  a  wrong  done.  I 
might  reasonably  insist  on  it,  as  a  wrong  to  be  retrieved,  I  might 
honestly  denounce  it,  as  a  wrong  not  to  be  endured.  But  I  now  con- 
tent myself,  with  representing  to  this  Court,  what  they  cannot  fail  to 
have  perceived  and  felt,  the  utter  want  of  logical  connection  and  con- 
clusiveness, which  attempts  to  detract  from  the  weight  of  the  Diocesan 
action  of  New  Jersey,  by  a  personal  criticism — I  may  rather  say,  a 
scandalous  attack — on  the  composition  of  its  Convention,  and  the 
members  of  its  Investigating  Committee.  Who  would  not  feel  that 
logic  and  decency  were  alike  disregarded,  had  an  attempt  been  made, 
to  detract  from  the  weight  of  the  Presentment^  by  a  rude  discussion  of 
the  character,  personal,  official  or  theological,  of  the  Presenting  Bish- 
ops ?  And  why  should  it  not  hold,  as  well,  and  be  as  readily  allowed  ? 
The  most  that  can  be  claimed  for  the  three  Bishops,  in  this  relation — 
and  that  I  never  have  conceded — is,  that  they  are  co-ordinate  with 
the  Convention.  As  presenting  bodies,  they  would  come  into  the 
Court,  if  both  could  come  indifferently,  with  equal  rights,  and  with 
the  same  immunities.  Both  decency  and  logic  must  be  outraged, 
when  either  should  be  personally  assailed. 

But  the  Presenting  Bishops  proceed  further,  and  in  more  detail. 
They  venture  to  discuss  the  character  and  personal  relations  of  the 
members  of  the  Investigating  Committee.  They  venture  to  assail  the 
characters  and  personal  relations  of  seven  men,*  who,  in  intelligence, 

*  The  Committee  of  Investigation  appointed  by  the  Convention  were  the  Hon. 
Daniel  B.  Ryall,  John  H.  Wakefield,  Esq.,  James  Potter,  Esq.,  John  L.  McKnight, 
Esq.,  CUeries  M.  Harker.  Esq.,  Henrj  McFarlane,  Esq.,  and  Thomas  H.  Whitnej, 
Esq, 


integrity,  and  eveiy  qualification  for  the  duty  assigned  them,  have  nc 
superiors  in  New  Jersey.  The  Hon.  Mr.  Ryall  f  they  have  assailed 
in  the  rudest  manner:  accusing  him  of  an  official  falsehood  ;  and  set- 
ting him  aside  as  unreliable,  as  a  member  of  the  Committee  of  Inves- 
tigation, "  because"  he  was  a  Trustee  of  Burlington  College,  and  has 
had  children  educated  there,  and  at  St.  Mary's  Hail :  a  man  of  the  most 
fearless  integrity  ;  in  the  foremost  rank  of  the  Bar  of  New  Jersey  ;  and 
honored  with  some  of  her  highest  offices,  and  most  sacred  trusts. 
And,  James  Potter,  a  name  well  known  from  Georgia  to  New  Jersey, 
as  synonimous  with  purity  and  honor  and  benevolence,  must  be  de- 
nounced, as  quite  disqualified  for  hearing  testimony,  and  giving  a  just 
verdict  on  it ;  because,  in  his  generous  sympathy  with  a  grf^at  Christ- 
ian work,  he  has  advanced  his  money,  to  take  up  judgments  which 
were  matured  in  other  hands  ;  and  so  become  "  a  judgment  creditor," 
not  of  me,  but  of  Burlington  College.  To  speak  of  Mr.  Harkei-,  and 
of  Mr,  Whitney,  in  New  Jersey,  as  honorable  men,  were  a  superfluous 
absurdity.  And  so,  of  all  the  rest.  New  Jersey  knows  and  honors 
them  ;  and  will  indignantly  repel  the  unjust  and  unjustifiable — and,  in 
its  lowest  view,  the  indecent  and  illogical — assaults  of  the  Presenting 
Bishops. 

n.  I  pass  to  the  legal  argument ;  so  labored,  and  so  little  to  the  point. 
It  lives  upon  analogies.  It  has  no  other  hold  upon  this  case.  No 
other  life.  Now,  analogies  are  good,  for  illustration.  May  be  taken 
in,  to  help  out  an  unuttered  thought.  May  be  permitted  to  indicate  the 
meaning  of  an  obscure  provision.  But  they  are  not  arguments.  They 
cannot  supply  defective  statutes.  They  must  not  constrain  a  dis- 
obliging canon.  And,  again,  analogies,  like  doubts,  must  be  charita- 
bly eonstrued.  They  may  mitigate,  but  must  not  exasperate  the  sen- 
tence of  the  law.  They  are  like  the  Court,  of  counsel,  always  for  the 
defendant.  But,  after  all,  there  are  no  analogies,  there  can  be  no 
analogies,  between  this  Court,  and  any  Court,  whatever  called,  of  civil 
or  of  criminal  jurisdiction.  Where  is  the  other  Court,  whose  Judges 
hold,  from  Jesus  Christ  ?  Where  is  the  other  Court,  whose  Judges 
administer  judgment,  onl}'  as  an  incident,  occasional  to  their  great 
work,  as  rulers  ?     Where  is  the  other  Court,  in  which  the  legislative 

t  Mr.  Ryall  was  not  Chairman  of  the  Committee  to  examine  Mr.  Germain's  ac- 
counts ,  and  is  liable  to  no  charge  of  being  cognizant  of  and  not  disclosing  the  loan  of 
the  Episcopal  Fund.  The  Committee  were  the  Rev.  Mr.  Williams  and  Mr.  Ryall;  and 
they  reported,  as  had  been  customary,  that  the  accounts  were  "  in  conformity  with  the 
vouchers  furnished."  iVor  did  the  Committee  of  which  Mr.  Ryall  was  Chairman  in 
1850  report,  "■contrary  to  the  trutli,  that  the  fund  was  secured."  Mr.  Ryall  and  Mr. 
Duer  reported  that  they  had  examined  the  securities ;  and  that,  in  their  judgment, 
hey  were  "  satisfactory  and  safe." 


6 

and  the  executive  combine  with  the  judicial  ?  It  is  an  element  of  our 
republican  institutions,  that  these  three  must  not  be  united  in  one  per- 
son. You  dare  not  throw  yourselves  on  this  construction  of  your  of- 
fice. It  would  be  treason  to  your  trust.  You  would  be  traitors  to 
your  Lord.  You  stand  alone.  There  can  be  no  analogies,  to  reach 
your  case.  They  are  deceptive,  all.  They  must  be  dangerous.  They 
may  become  destructive.  On  your  office,  you  cannol  follow  them.  On 
your  sacred  orders,  you  dare  not.  '' 

But  suppose  you  could,  suppose  you  dare.  What  are  they  ?  Nothing. 
Absolutely,  nothing.  Not  a  shadow,  even.  The  attempted  analogy,  so 
largely  labored,  and  so  "long  drawn  out,"  is  between  tjie  relative  func- 
tions of  a  Grand  Jury,  and  of  an  Attorney  General,  proceeding  by 
information,  in  bringing  on  a  criminal  prosecution,  in  the  civil  Courts  ; 
and  the  relative  functions  of  a  Diosesan  Convention,  and  of  three 
Bishops,  in  making  a  Presentment,  to  be  tried  by  this  Court.  What 
is  a  Grand  Jury  ?  And  what  is  an  Attorney  General  ?  Merely  creatures 
of  the  Crown,  or  of  the  State ;  for  one  specific  end  :  the  detection, 
exposure  and  punishment  of  crime.  That  is  their  beginning,  their 
middle,  and  their  end.  They  have  no  other  use.  No  other  life.  How 
does  this  compare  with  a  Diocesan  Convention,  with  the  Bishops  of 
God's  Church,  whose  "strange  act"  is  "judgment  ?"  Who  "live,  and 
move,  and  have  their  being,"  for  ends,  and  aims,  of  a  perpetual  neces- 
sity, and  a  perpetual  charity?  What  is  a  Grand  Jury,  in  its  constituen- 
cy ?  Four  and  twenty  men  gathered  from  the  County,  to  be  present 
at  a  certain  session,  of  a  certain  Court,  of  stated,  permanent  continu- 
ance :  to  hear  complaints,  which  come  before  them  ;  to  institute  enqui- 
lies,  and  make  complaints  upon  their  own  responsibility ;  to  act  ac- 
cording to  their  oath  ;  to  discharge  their  consciences  in  regard  to  every 
man,  and  every  thing,  that  comes  within  their  cognizance ;  and  then, 
to  scatter  to  the  winds  :  never,  by  any  supposable  possibility,  to  come 
together,  all  of  them,  as  one  Grand  Jury.  And,  how  does  this  com- 
pare with  a  Diocesan  Convention ;  of  wide  and  various  functions  ; 
statedly  assembling,  and  re-assembling,  forever,  for  their  discharge ; 
the  Reverend  Clergy,  in  their  official  right,  throughout  a  life,  which 
does  not  drop  with  death,  but  lives  on,  by  succession,  "until  the  end 
of  the  world  ;"  the  honored  Laity,  often,  through  life-long  periods, 
of  devoted  service  in  this,  their  ministry:  in  all,  one,  constant,  never- 
ceasing,  never  changing,  spiritual  Body  ;  a  member  of  His  living  and 
life-giving  Body, Who  is  "the  same,yesterda3',  and  to-day,  and  forever." 
And  then  to  compare  the  Attorney  General,  acting  by  information  ;  on 


leave  of  the;Court,  and  with  its  permission,  with  the  three  Bishops 
under  this  Caiion  :  who,  if  they  act,  at  all,  have  acted  before  the  Court 
assembles ;  act,  without  leave  from  it,  and  with  no  regard  to  its  per- 
mission ;  and  are  as  independent,  in  their  function,  as  the  Court  can 
be  in  its.  Apply,  to  the  case  of  a  Diocesan  Convention  and  any  three 
Bishops,  the  analogy  attempted  to  be  drawn,  from  the  relative  func- 
tions of  the  Grand  Jur}^  and  the  Attorney  General  proceeding  by  in- 
formation ;  and  see,  to  what  it  leads !  In  the  latter  case,  it  is  admitted, 
that  either  may  proceed,  indifferently  ;  or  that  both  may.  You  have, 
then,  two  permanent  bodies,  in  the  Church  of  Jesus  Christ,  exposed 
to  a  perpetual  conflict.  You  have  a  wedge  forced  in  between  them, 
which  must  drive  them  all  the  world  apart.  In  the  assault  already 
made  by  three  Bishops,  on  the  Convention  of  a  Diocese,  you  have  the 
dimmest  shadow,  of  what  must  ensue.  And  should  these  views  be 
realized,  you  might  have  a  Bishop,  thrown  in,  between  these  two  con- 
flicting bodies,  each,  with  equal  power  to  make  presentment ;  to  be 
forever  bandied,  from  the  one  side  to  the  other,  as  party  ranco'ur,  or 
personal  interest,  or  individual  caprice  may  dictate.  The  conclusion 
is  absurd  ;   and,  so,  impossible. 

But  the  presenting  Bishops  urge  the  Court,  as  by  a  stern  necessity 
to  progress,  in  the  case.  It  cannot  be  arrested.  You  must  not  stop  to 
hear.  You  must  not,  even,  stop,  to  think.  There  is  a  Presentment 
made.  The  trial,  therefore,  must  proceed,  at  once.  Does  it  not  say, 
this  Canon  "  of  the  trial  of  a  Bishop,"  even  in  the  2d  section  thereof, 
"upon  a  Presentment  made,"  "the  course  of  proceeding  shall  he  as  fol- 
lows l"  Doubtless,  it  does.  But  all  it  means  is,  if  you  do  proceed, 
and  when  you  do  proceed,  j'ou  shall  proceed  thus ;  and  in  no 
other  way.  It  does  not  command  you  to  proceed,  at  once  ;  upon  the 
instant  that  Presentment  may  be  made:  without  inquiry,  and  without 
consideration.  Was  ever  a  court  for  the  trial  of  offences  heard  of 
upon  earth*  that  had  no  prerogative  of  interposition  ?  That  could  not 
quash  an  indictment  ?  That  could  not  dismiss  an  accusation  ? 
That  could,  in  no  way,  and  on  no  consideration,  stay  proceedings, 
even  for  a  moment  ?  And,  can  a  Court  of  Chri&t's  Church  be  de- 
fective, in  a  power,  so  obviously  inherent  in  the  very  nature  of  a  Court  ? 
Can  a  Court  of  Bishops,  with  their  powers  and  rights,  above  all  Canons, 
and  beyond  them,  be  without  it  ?  A  Court  of  Bishops,  most  espe- 
cially, from  which,  there  is  provided  no  appeal,  whatever  ?     And  this 

*  I  do  not  here  take  in  the  lower  court  of  Justice  Rhadamanthus :  "  Castigat,  atidit- 
gue." 


most  sovereign  power,  and,  this  most  sacred  right,  be  lost  to  such  a 
Court,  by  mere  omission  ;  in  a  Canon,  which  gives  them  no  authority* 
whatever,  and  claims  but  to  direct  them  ?  An  omission,  merely,  con- 
strued, as  a  limitation  ?  And,  that  of  a  prerogative  ;  which  justice 
consecrates,  and  mercy  claims  ?     It  cannot  be.     It  cannot  be. 

But,  we  are  driven  upon  "the  letter,"  upon  "the  letter!"  But 
the  letter  is  of  service,  only  to  supply  the  meaning  of  the  law.  "Qui 
hseret  in  litera,  hasret  in  cortice."  "The  letter  killeth,  but  the  spirit 
giveth  life."  Take  an  example,  from  the  letter.  The  Canon  "of  the 
Trial  of  a  Bishop"  reads,  as  follows  :  "  The  trial  of  a  Bishop  shall  be 
on  a  Presentment,  in  writing,"  &c.  "'  Said  Presentment  may  be  made 
by  the  Convention  of  the  Diocese,  to  which  the  accused  Bishop  be- 
longs ;"  proceeding,  then,  to  affix  certain  limitations.  "  And  it  may 
also  be  made,  by  any  three  Bishops  of  this  Church."  Stick  to  the 
letter ;  and  this  means — for,  if  any  words,  in  English,  are  accumula- 
tive, "and"  "also,"  are  the  words — that,  when  a  Bishop  has  been 
presented,  by  the  Convention  of  his  Diocese,  and  tried,  he  may  be 
presented  for  the  same  offences,  "by  any  three  Bishops  of  this  Church  ;" 
and  tried,  again.  This  will  be  admitted,  on  all  hands,  to  be  absurd. 
No  man,  in  a  free  country,  can  be  held  to  such  injustice.  Yet,  it  is 
"the  letter"  of  the  Canon.  "  The  letter,"  therefore,  cannot  be  adhered 
to.  The  spirit  must  be  sought,  from  it.  There  is  discretion,  then,  to 
leave  "the  letter"  of  the  Canon  ;  and  get  out  of  the  bark.  This  Court 
has  that  discretion.  The  question  is,  is  this  a  case  to  exercise  it? 
And,  of  that,  again,  this  Court  must  judge.  It  may  decide,  whether  it 
shall  proceed,  at  once,  to  trial ;  or,  whether  it  shall  stay  proceedings, 
and  inquire.  Nay  ;  and  it  must  inquire.  It  may  not  refuse  to  enter- 
tain a  question,  so  important  in  its  bearings,  on  this  case,  and  on  all 
cases.  As  Diocesan  Bishops,  you  must  not  refuse  to  consider  the 
solemn  representations  of  a  Diocese.  As  Bishops  of  the  Church  of 
God  you  must  not  hurry  on  ;  and  leave  behind  you  a  claim,  so  preg- 
nant with  the  most  disastrous  issues.  You  cannot  do  it ;  and  you 
dare  not.  I  do  not  mean,  from  any  fear  of  men  ;  from  any  conside- 
ration of  personal  consequences.  But,  on  your  responsibilities,  as 
Christians.     But,  on  your  oaths,  as  Bishops. 

You  have  discretion,  then,  as  Bishops,  before  the  Canon,  and  o?rf- 
side  of  it :  and  I  must  add,  from  above  it.  That  discretion,  you  are 
to  exercise,  in  ascertaining  the  spirit  of  the  Canon,  What  is  the 
spirit  of  the  Canon  ?  The  spirit  of  the  Canon  is,  that  the  subject- 
matter  of  the   charges,  the   whole  question,  of  presentment,  or  no- 


9 

presentment,  is  to  be  investigated,  by  one  of  two  tribunals ;  the  Dio- 
cesan Convention,  or  three  Bishops.  The  investigation  by  either,  ac- 
cording to  the  terms  of  the  Canon,  concludes  the  case  ;  whether  that 
investigation  results  in  dismissing  the  charges,  or  in  finding  a  Present- 
ment. It  is  not  necessary,  that  the  Convention  should  present,  in  order 
to  produce  a  bar  to  the  action  of  three  Bishops.  If  they  dismiss  the 
charges,  it  is  as  much  a  bar,  as  if  they  find  a  Presentment.  Other- 
wise, the  only  object  of  the  Canon  must  be,  to  procure  presentment.  The 
law  is,  at  least,  as  much,  for  the  protection  of  the  innocent,  as  for  the 
punishment  of  the  guilty.  If  the  Canon  does  not  give,  to  the  Conven- 
tion, the  power  to  dismiss  charges,  as  well  as  to  proceed  to  trial,  and 
make  the  one,  as  final  and  conclusive,  as  the  other,  too  much  would 
flow  from  it ;  and  it  would  perish,  by  its  own  excess.  It  would  com- 
pel Presentment,  in  all  cases  of  inquiry  ;  even  where  the  accused  had 
been  the  subject  of  a  former  trial.     This  is,  of  course,  absurd. 

But,  though  the  Canon  provides  two  modes,  for  the  Presentment  of 
a  Bishop,  it  does  not  therefore  make  them  equal,  or  concurrent,  or  al- 
ternate. The  Presenting  Bishops,  so  far  as  they  are  consistent  with 
themselves,  interpret  the  Canon  rightly,  in  their  letter  of  the  22d  Sep- 
tember, 1851.  They,  there,  expressly  say,  "That,  action  shall  first 
take  place  in  the  Diocesan  Convention,"  "  must  have  been  the  expec- 
tation of  the  Church,  in  the  Canon,  for  the  trial  of  a  Bishop."  As 
much  as  this,  and  even  more,  the  Diocesan  Convention  of  New  Jer- 
sey claims,  for  herself  But,  this  much  serves  her  present  purpose. 
The  Presenting  Bishops,  it  is  true,  proceed  to  specify  the  instances  of 
laches,  in  which,  as  they  interpret  the  Canon,  the  Diocese  might  lose 
this  prior  right.  Without  admitting  their  resulting  claim,  at  all,  the 
Diocese  of  New  Jersey  steadfastly  maintains  that  no  such  laches  lie 
on  her.  Not  in  May,  1849,  when,  although  charges  were  not  brought, 
they  were  not  only  challenged,  but  defied ;  and  the  Convention,  by 
one  silence — an  expression,  in  that  record,  unparalleled,  ''  an  unani- 
mous negative" — refused  to  present  its  Bishop.  Not  in  May,  1850, 
when  no  whisper  of  a  charge  was  heard,  nor  any  "abrupt  adjourn- 
ment"  had,  as  is  apparent  from  the  record  ;  and  as  a  multitude  of  wit- 
nesses will  attest.  i\"o<  in  May,  1851,  when,  again,  no  whisper  of  a 
charge  was  heard  ;  when  the  person,  named  by  the  Presenting  Bish- 
ops as  intending  to  bring  charges,  was  known  to  be  there,  on  the 
opening  day,  on  which  he  might  have  brought  them,  if  he  chose  ;  and 
no  one  knew  either  of  his  intention  or  of  his  retirement :  when,  ia 
fact,  the  motion  to  adjourn,  as  can  l)e  proved,  originally   came   from 


10 

those  who  sympathize  with  him ;  and,  when,  as  also  can  be  proved,  on 
the  suggestion,  by  a  member  of  the  Convention,  that  there  was  busi- 
ness to  be  brought  before  it,  it  was  publicly  declared,  that,  if  he  or  any 
other  person,  would  declare  the  nature  of  that  business,  the  Conven- 
tion would  hold  over,  though  its  necessary  doings  were  transacted. 
Not  in  March,  1851,  when  the  Bishop  who  called  the  Convention,  and 
who  defined  the  objects  of  the  call,  had  said  expressly,  publicly, 
and  solemnly,  "  no  such  special  Convention  will  be  called  " — none 
such,  that  is,  as  the  three  Bishops  had  seen  fit  to  dictate,  to  investi- 
gate the  charges,  brought  to  them,  by  the  four  Laymen,  and  so  avoid 
presentm-nt,  at  their  hands — and  was  little  likel}'  to  go  on,  and  stultify 
himself,  by  calling  it :  so  that,  not  only  were  the  charges  of  the  Laymen 
not  before  the  special  Convention,  for  their  investigation ;  but  the 
Bishop's  foot  was  down,  that,  come  what  might,  there  should  be  no 
inquiry,  by  compulsion.  No  lacheslay,  at  this  date, March  17, 1851, 
on  the  Convention  of  New  Jersey.  There  was  no  reason  to  suppose 
there  would.  For  that  Convention  solemnly  declared  its  past,  its 
present,  and  its  future,  readiness,  to  investigate  "  charges,  duly  made 
and  presented."  On  the  30th  day  of  that  same  March,  the  Bishops 
dated  their  Presentment :  when  they  well  knew,  that  less  than  eight 
weeks  would  bring  round  the  annual  meeting  of  the  Diocese  :  en- 
able the  Convention  to  redeem  its  pledge ;  or  prove  it  false  and  re- 
creant. Unmoved  by  these  proceedings  of  the  Bishops,  the  Conven- 
tion did  redeem  its  pledge.  It  took  the  charges  up,  which  they  had 
brought :  not  because  they  had  brought  them ;  not  because  they  had 
been  brought  in  the  form  of  a  Presentment ;  but  because  they  were 
specific  charges,  with  authentic  names  :  the  only  terms  which  they  had 
ever  made  ;  or,  which  they  now  desired.  On  the  27tli  day  of  May, 
they  appointed  a  Committee  of  Investigation,  by  ballot,  upon  open 
nomination.  The  Committee  organized  themselves,  that  night.  They 
notified  the  complainants,  on  whose  sole  authority  the  Bishops  had 
presented.  They  did  not  notify — the  Convention  refused  to  instruct 
them  to  notify — the  three  Presenting  Bishops  ;  because  they  deemed 
too  highly  of  their  office,  to  suppose  that  they  would  be  complainants, 
presenters  or  witnesses,  in  the  case.  But,  in  notifying  the  first  named 
of  the  four  complainants,  they  did  notify  him,  who  was,  in  fact,  the 
attorney,  in  this  State,  of  the  Presenting  Bishops,  and  has  since  be- 
come their  counsellor  ;  and,  in  granting  all  the  terms,  which  he  pro- 
posed, they  yielded  all  that  the  Convention  had  refused  to  grant,  in 
limitation  of  its  confidence  in  them,  when  it  rejected  his  amendment. 


11 

They  summoned  every  person  named  in  the  Presentment.  They  sum- 
moned every  one  of  a  long  list  of  persons,  named  to  them  bj'  him, 
who  has  been  here  alluded  to.  They  met,  from  day  to  day,  with  no- 
tice given  of  all  adjournments  over  any  day,  for  ten  days.  They  were 
.  always  ready  to  receive  him.  They  were  always  ready  to  hear  his 
.  witnesses.  They  were  always  ready  for  his  cross-examination  of  any 
witnesses,  that  chose  to  come.  They  examined  twenty-one.  They 
examined  them  under  oath  or  affirmation.  They  took  down  their  tes- 
timony, word  by  word.  Word  for  word,  they  reported  it  to  the  ad- 
journed Convention  ;  which  assembled  on  the  14th  of  July.  The 
Convention  adopted  their  report.  They  printed,  it  with  the  testimony. 
They  sent  it  to  the  Presenting  Bishops.  They  sent  it  to  all  the  Bish* 
ops.  They  sent  it  to  the  whole  Church.  They  sent  it  to  the  world. 
And  there  it  stands,  fifty-seven  solid  printed  pages  of  testimony,  from 
the  mouth  of  twenty-one  unquestionable  witnessess,  given  upon  the 
peril  of  their  souls.  And  this  is  called  an  ex  parte  investigation  ! 
What  is  an  ex  parte  investigation  ?  An  investigation,  where  only  one 
side  has  the  opportunity  to  be  present,  and  confront  the  witnesses. 
Was  that  so  in  this  case  ?  What  hindered  the  complainants?  What 
hindered  the,  now,  counsellor  of  the  Presenting  Bishops,  from  being 
there,  except  their  own  mere  will?  And  is  justice  to  be  thwarted 
and  innocence  oppressed,  because  the  accusing  party,  in  wilfulness, 
abstains  from  the  investigation,  which  is  proffered,  in  self  defence  and 
self-acquittal?  Does  this  constitute  an  ex  parte  investigation?  In  no 
true  sense,  can  it  be  called  so.  The  Church  does  not  regard  it  such. 
And  this  Court  will  not. 

But  the  Presenting  Bishops  charge,  that  whatever  the  character  of 
the  investigation  might  have  been,  the  adjourned  Convention  was  not 
of  a  character  to  give  it  any  force  under  the  Canon  ;  and,  it  goes  for 
nothing:  and  the  Diocese  is  without  claim  to  stay  proceedings.  The 
Canon,  as  they  justly  say,  requires,  that  before  a  Convention  can  pro- 
ceed with  a  Presentment  of  its  Bishop,  two  thirds  of  the  Clergy  enti- 
tled to  seats  must  be  present;  and  two  thirds  of  the  parishes  canoni- 
cally  in  union  with  the  Convention  must  be  represented.  They  claim, 
that,  to  refuse  to  present,  the  same  constituents  are  necessary ;  and 
they   deny  that  they  were  there. 

When  it  had  been  argued  by  the  Bishop  of  New  Jersey,  not  only  in  bis  reply  to  the 
Presenting  Bishops,  but  also  iu  answer  to  the  Bishop  of  Ohio,  who,  on  the  next 
day,  claimed  and  obtained  permission  to  reply  to  him  that  the  co;;  (!(?;'.S(,' application 
of  the  limitation  of  the  Canon,  could  not  apply :  as  the  language  is  strict,  "  Said 


12 

pi'C'sentriunt  may  be  made ;"  as  limitations  are  never  against  mercy;  and,  if  analogy 
be  resorted  to,  one  man  suffices  to  acquit,  before  a  jury,  while  twelve  men  must  unite, 
in  his  conviction :  and  when  the  Bishop  of  New  Jersey  had  shown,  that,  if  the  Canon 
did  require  it,  more  than  two-thirds  of  the  Clergy  entitled  to  vote  were  present ; 
and  was  proceeding  with  the  analysis  of  the  Lay  vote :  upon  an  interrujition,  from 
one  of  the  Presenting  Bishops,  that  his  mere  statement  could  not  be  accepted  ;  the 
Court,  without  dissent,  decided,  that  the  ap2^lication  of  the  two-thirds  principle 
does  not  apply  to  a  ref-usal  to  present.  This  portion  of  the  argument  is  therefore 
now  omitted. 

Now,  mark  the  relation,  as  to  time,  of  the  two  proceedings,  under 
discussion.  I  mean,  the  Diocesan  Investigation  and  the  Presentment 
by  three  Bishops,  novo  before  this  Court.  Again  declaring,  that  I 
separate  myself  from  this  proceeding  of  the  Diocese,  and  only  stand 
before  you,  now,  as  its  next  friend,  in  tlie  assertion  of  its  rights,  I  wish 
to  clear  myself,  even  in  this,  from  any  show  of  inconsistency.  With- 
out the  slightest  measure  of  responsibility,  for  the  postponement,  by 
the  late  Presiding  Bishop,  of  the  Court,  first  called,  by  him  ;  1  had  de- 
termined and  declared,  that  no  advantage  should  be  taken  of  it.  I 
expected,  ii  there  was  a  trial,  to  bo  tried,  upon  ilie  first  Presentment. 
All  my  arrangements,  and  all  my  preparation,  had  been  made,  in 
reference  to  that.  But,  when  the  Presenting  Bishops  without  con- 
sulting me ;  without  enabling  me  to  meet  or  to  explain  the  additional 
charges,  which  they  make  ;  with  just  the  time,  beyond  the  stated  limit 
of  the  Canon,  that  it  took  the  Bishop  of  Ohio  to  read  their  paper, 
here,  this  morning —  with  ninety  minutes'  notice — come  down  upon 
me  with  a  new  Presentment,  the  case  is  changed.  If  they  have  de- 
feated themselves,  it  is  their  own  look-out.  If  they  have  put  them- 
selves to  inconvenience,  I  cannot  help  them  out  of  it.  If  they  had 
come  to  me,  at  first,  I  would.  I  would  have  met  them  frankly,  and 
given  them  truthful  information.  But  they  adopted  evil  counsellors. 
They  have  fallen  into  evil  hands.  I  f  ity  ;  but  I  cannot  help,  them. 
It  is  their  affair,  not  mine.  And,  now,  I  say,  that,  while  their  new  Pre- 
sentment is  not  dated,  until  July  22d — as  it  afterwards  appeared,  on 
the  admission  of  the  Bishop  of  Ohio,  it  had  not  the  third  signature, 
and,  sj,  was  no  presentment,  until  August  11 — the  action  of  New 
Jersey,  beginning  on  the  27th  of  May,  and  consummated  on  the  14th 
of  July,  is  prior  action  :  and,  by  their  own  statement  of  "  what  must 
have  been  the  expectation  of  the  Church,  in  her  Canon  for  the  trial  of  a 
Bishop,  viz — That  action  s'lall  first  take  place  in  Diocesan  Conven- 
tions," excludes  them,  altogether,  from  this  Court. 


13 

I  could  have  wished,  could   I  wish  so  much   harm  to   any  living 
man,  that  another  had  been,  in  my  place ;  and  I  had  perfect  freedom 
to  defend  these  principles.     But,  you  will  bear  me  witness,  that,  at  the 
opening  of  this  Court,  I  pledged  myself,  that  I  would  raise  every  point 
and  plant  myself  on  every  foot   of  ground,    that  could   be  urged  or 
taken,  to  defend  the    Bishops,  that  are,    and  those  that  are  to  be, 
from     any     similar    position.       To    me,   no     harm     can,   now,  be 
done.     I  have  been  twice  presented;  and  exposed  to  all  the  obloquy 
and  all  the  odium,  which  can  attach  to  such  a  posture.     But,  you  are 
yet  untouched.     And,  for  your  sakes,  and  for   their  sakes,  who  shall 
come  after  you,  and  me,  until  the  world  shall  end,  I  am.  resolved,  al- 
though the  opposite  theory  prevails,  with  the  Presenting  Bishops,   to 
do,  what  lies  in  me,  to  make  the  trial  of  a  Bishop,  hard.     This  Canon 
is  but  new.     We  have  had  one  trial  under  it.     And,  I  most  solemnly 
believe,  that  greater  evils  have  arisen,  from  that  trial,  than  could  have 
come,  if  the  offences  charged  upon  the  Bishop  of  New  York — which 
I  have  never  for  one  moment  believed — had  all  been  true.     And,  now, 
you  are  pressed,  and  urged,  and  threatened,  and  almost  driven,  to  pro- 
ceed, with  me.     When  my  whole  Diocese,  with  whom  I  have  gone  in 
and  out,  for  twenty  years,  is  with  me.  When  there  are  only  two  of  the 
Clergy  who  openly  oppose  me; and  two  or  three  who  fall  in,  sometimes, 
on  collateral  or  incidental  questions :    and  all  the  names  of  all  the 
Laity,   who  further  this  proceeding,  could   be  written  on  my  thumb 
nail.     It  is  not  mine,  to  press,  to  urge,  to  threaten,  or,  to  drive.     But, 
as  a  free,  and  as  an  honest  man,  I  must  declare  to  you,  you  cannot  go 
on,  and  try  these  charges.     They  are  not  lawfully,  before  you.     The 
Diocese  has  put    itself,  canonically,    between    its    Bishop    and    this 
Court.     To  reach  him,  you  must  tjample  upon   it.     You   must   disre- 
gard the  rights  of  one  Diocese;  you  must  invalidate  the  rights  of  all ; 
you  must  endanger  the  peace,  the  harmony,  the  unity,  of  the  Church. 
It  may  not  b'>  for  me,   to  give  advice.    I  do  it  for  your  sakes ;  not  for 
my  own.    I  repeat  it,  you  cannot  go  on,  and  try  the  Presentment,  now 
before  you.     I  know,  it  has  been  said,  "  No  good  will  come  of  this  ; 
there  will  but  be  another  Presentment,  another  trial :  and  the  end  will 
be  the  same  !"     That  may  be  so.     I  cannot  say.     It  does  not  touch 
the  right.     You  cannot  go  on,  now.     You  must  go  home,  and  leave 
this  matter  where  it  is.    And  I,  for  my  part,  have  but  this  to  say  :    let 
a  Presentment  come  up,  square ;  and  I  am,  here,  to  meet  it. 

On  the  following  morning,  the  Bishop  of  New  Jersey  had  permission  to  add  a  single 
point ;  which  he  had  omitted,  in  his  argument. 


14 

The  Presenting  Bishops  say,  at  the  conclusion  of  their  Reply,  as 
if  it  were  a  clenching  question — "  We  cannot  but  ask,  what  would 
have  been  thought  of  the  Legislature  of  Mississippi,  had  it  sent  a 
Committee  to  New  Orleans  to  remonstrate  with  the  Court  of  the 
United  States,  against  subjecting  their  Governor,  Quitman,  to  a 
trial ;  or  of  the  Judges  of  that  Court,  had  they  debated,  for  days, 
the  propriety  of  dismissing  the  prosecution,  because  of  such  remon- 
strance?"— The  answer  is  the  simplest,  in  the  world.  Governor 
Quitman  was  not  before  that  Court,  as  Governor  of  Mississippi ;  but 
as  a  private  citizen.  The  Legislature  of  Mississippi  had  no  power 
to  bring  him,  before  that  Court.  The  Respondent  is  here,  as  Bishop 
of  New  Jersey.  The  Convention  of  his  Diocese  have  power,  under 
the  Canon,  to  bring  him  here,  by  a  Presentment.  There  is  not  the 
slightest  agreement  in  the  cases.*  Therefore,  not  the  slightest  fit- 
ness, in  the  illustration. 


Subsequently  to  this,  the  Bishop  of  Ohio,  for  the  Presenting  Bishops,  claimed  and  had 
leave  to  reply  to  the  Bishop  of  New  Jersey ;  as,  at  a  later  period,  the  Bishop  of 
Maine  also  did.  The  Bishop  of  New  Jersey  replied  to  them,  successively.  A  part 
of  his  reply  to  the  Bishop  of  Ohio  is  added  here ;  as  carrying  out,  more  fully  than 
the  preceding  argument,  two  or  three  points,  of  some  importance.  After  insisting, 
at  great  length,  on  the  necessity  of  fo  llowing  the  "letter,"  rather  than  the  spirit; 
as  being  "  the  voice  of  the  law;  by  which  alone  it  speaks" — so  as  to  treat  the  law 
very  much  after  the  manner  of  the  Sadducees,  "  wlio  say  tliere  is  no  resurrection, 
neither  angel,  nor  spirit'" — the  Bishop  of  Ohio  claimed,  that  the  omission  to  raise 
the  points,  now  raised,  by  the  Diocese  of  New  Jersey,  in  the  case  of  the  Bishop  of 
New  York,  was  conclusive,  against  their  validity ;  severely  censured  the  opinion  of 
the  Bishop  of  New  Jersey,  as  to  the  comparative  evils  resulting  from  that  trial ;  and, 
at  great  extent,  and  with  much  warmth,  denounced,  as,  at  once,  dangerous  to  the 
Church,  and  unworthy  of  himself,  the  declaration  of  his  purpose,  to  do  what  rested 
upon  him.  to  make  the  trial  of  a  Bishop,  hard.  To  this,  the  Bishop  of  New  Jersey 
replied,  as  follows : 

I  am  aware,  that  in  the  Court,  by  which  the  Bishop  of  N.  Y.  was  tried, 
the  principle  of  the  Canon,  now  in  question—the  prior,  if  not  exclu- 
sive, right  of  a  Diocesan  Convention,  to  make  presentment  of  its 
Bishop — was  never  pressed.  But,  I  also  know,  that  it  was  urged, 
with  utmost  earnestness,  upon  his  devoted  and  distinguished  Counsel, 
my  late  lamented  friend,  David  B.Ogden,  Esq.;  and  refused,  from  his  en- 
tife  conviction,  that  his  client  would  be  acquitted,  on  the  merits.     And 

*Not  even  the  two  M.s,  of  Macedonia,  and  Monmouth.    Much  less,  the  rivers ;  with 
the  salmons. 


15 

moreover,  I  know,  that  two  of  the  most  influential  Presbyters  of  that 
Diocese,  did  represent  to  the  three  Presenting  Bishops,  their  own 
views,  as  to  the  Canon,  and  the  views  of  a  large  body  of  the  Cler- 
gy and  Laity ;  in  entire  agreement  with  the  interpretration  from 
New  Jersey. 

My  opinion  as  to  the  greater  evils,  which  resulted  from  that  trial 
than  could  have  come  of  the  offences  charged  in  it,  I  freely  re-assert. 
It  has  presented  the  Protestant  Episcopal  Church  in  the  United  States 
of  America,  as  a  divided  Church.  It  has  seemed  to  permit,  if  not  to  au- 
thorize, the  impression,  within  the  Church  and  without  it,  that  Bishops 
may  be  brought  to  act,  upon  inferior  motives,  with  ulterior  aims.  It 
has  given  tongue  to  the  astounding  thought,  that,  even  in  this  Church, 
at  this  day,  men  may  be  marked,  as  subjects,  if  not  victims,  of  a  line 
of  action,  of  which  the  end  was  seen,  from  the  beginning. 

The  Bishop  of  Ohio  misunderstood  me,  if  he  thought  I  said,  the 
present  Canon  made  the  trial  of  a  Bishop,  hard.  I  said,  it  was  my 
purpose  to  do  what  lay  in  me,  to  make  it  so.  I  say  so,  yet.  He  does 
me  the  great  honor  to  remember  a  remark  of  mine,  made  many  years 
ago.  I  do  not  recollect  it ;  but  I  do  not  doubt  his  accuracy.  I  said, 
in  referencn  to  the  proceeding  of  a  Diocese  against  its  Bishop,  "What, 
children  try  their  father  !"  I  accept,  at  once  his  memory,  and  his  sug- 
gestion. I  adopt  the  figure.  It  does  not  hold,  all  around  ;  but  it  comes 
near  enough.  The  members  of  a  Diocese  are  as  the  children  of  one  fa- 
ther. Now,  mark,  how  carefully  the  Church  restrains  these  filial  hands. 
She  does  not  say,  that  any  number  of  the  children,  gathered,  any- 
where, at  any  time,  in  any  way,  may  institute  proceedings,  for  the 
trial  of  their  father.  She  does  not  trust,  so  much,  the  very  love  of 
sons  and  daughters.  She  requires  a  due  assemblage,  in  Convention. 
She  requires  the  presence  of  two-thirds,  of  either  sex.  She  requires, 
that  they  shall  wait  one  day,  and  sleep,  one  night,  upon  it.  She  re- 
quires, then,  that  two-thirds,  of  the  two-thirds,  of  both  sexes,  shall 
unite,  in  the  proceeding.  Is  not  this  making  the  trial  of  a  Bishop 
hard  ?  Is  a  father  trusted,  even  to  the  tender  mercies  of  his  children  ? 
And,  will  it  be  believed  that  "  any  three  Bishops  of  this  Church,"  un- 
specified,  undefined,  uninstructed,  uncontrolled,  unregulated,  were  ever 
meant  as  an  ahernative?  I  never  heard,  till  recently,  the  explanation 
of  this  clause,  given  in  this  Court,  by  the  Bishop  of  Indiana,  who  was 
Chairman  of  the  Committee  of  the  House  of  Clerical  and  Lay  Depu- 
ties, by  whom  the  Canon  was  reported,  that  it  was  designed  only  to 
meet  the  case  of  Bishops,  who  had  resigned  their  jurisdiction,  and  of 


16 

Missionary  Bishops,  and  of  any  other  Bishops,  of  this  Church,  who 
might,  from  any  cause,  have  no  Conventions,  to  proceed  against  them, 
if  offenders.  But,  I  confess,  it  has  made  the  clause,  for  the  first  time, 
to  my  mind,  even  intelligible  ;  to  say  nothing  about  reasonable  and 
just. 

The  Bishop  of  Ohio  would  deem  it  a  great  hardship  not  to  be  liable, 
on  easy  terms,  to  trial ;  would  never  know  how  he  might  stand  among 
his  brethren,  and  in  the  Church,  as  to  the  matter  of  his  morals  ;  would 
hardly  know  how  he  should  stand,  with  his  own  self.  In  what  a  sad 
perplexity,  upon  this  theory,  the  Bishops  of  the  Church  of  England 
must  have  been,  for  centuries  ;  where  there  is  no  provision  for  the  trial 
of  a  Bishop.  And  yet  there  cannot  be  on  earth  a  more  exemplary  set 
of  men,  or  better  reputed  of  among  their  brethren. 

And,  there  is  another  portion  of  the  Church,  from  which  the  vei'y  in- 
stincts of  my  being  so  revolt,  that  I  could  do  anything  short  of  a  de- 
nial of  the  whole  substance  of  the  Catholic  f  ith,  rather  than  be  a  Ro- 
manist. And,  yet,  we  must  own,  that  in  her  generation,  the  Church 
of  Rome  is  wise  and  prudent,  and  stands  well  with  men.  Now,  who 
has  ever  heard  of  the  trial  of  a  Romish  Bishop  ?  Scarcely,  of  a  Rom- 
ish Priest.  When  one  of  the  Clergy  of  that  Church  falls  into  open 
and  notorious  sin,  he  is  sent  off,  in  silence  and  solitude  and  sorrow  : 
we  humbly  trust,  to  make  his  peace  with  God.  And  the  Church  and 
the  world  are  spared  the  scandal  of  his  offences,  and  the  greater  scan- 
dal of  his  trial. 

[Of  the  remaining  portions  of  the  Bishop  of  New  Jersey's  replies, 
to  the  Bishops  of  Ohio  and  Maine,  it  is  not  deemed  necessary,  now,  to 
write  the  notes  out.     They  remain  in  his  possession.] 


PHOTOMOUNT 
PAMPHLET  BINDER 

PAT     NO. 
877188 

Manufaclured  by 

GAYLORD  BROS.  Inc. 

Syracuse,  N.  Y. 

Stockton,  CaliF. 


BX5960 .D63A3 

The  argument  of  the  Bishop  of  New  Jersey 

Princeton  Theological  Semmary-Speer  Library 


1    1012  00050  9010 


